Before MAJOR, Chief Judge, and FINNEGAN and SWAIM, Circuit Judges.
This is an appeal dismissing, for want of jurisdiction, the complaint in an action in which the plaintiff sought damages in the District Court against four members of the Police Department of the City of Chicago, Illinois, for having allegedly deprived the plaintiff of certain civil rights guaranteed to him by the Constitution of the United States.
The complaint alleged that two of the defendants William J. Moynahan and Raymond Brewer, on August 18, 1948, came to the plaintiff's private home, identified themselves as Police Officers of the City of Chicago and gained plaintiff's permission to enter his home by saying that they wanted to talk to him. On gaining admission to plaintiff's home, defendants accused him of having committed a crime on the preceding day and they then, without warrant and over plaintiff's protest, searched his private residence, seized his personal papers and other personal property, placed him under arrest and then, under threat of physical violence, these two defendants and defendant John Fitzpatrick took plaintiff to the "Cragin Police Station, 31st District of the City of Chicago Police Department."
The complaint alleged further that, after arriving at said Police Station, the plaintiff was threatened, intimidated, cursed, was repeatedly knocked to the floor by these defendants and "in general * * * was subjected to the usual third degree practices used by members of the Chicago Police Department to obtain information and/or confessions."
The complaint also alleged that, after the plaintiff had been so interrogated and mistreated for about two and a half hours at the Police Station, he was taken before defendant Leroy Steffans, a Captain of the Chicago Police Department, who knew that plaintiff had been subjected to the above described treatment and who, after being told by defendants Moynahan and Brewer that the plaintiff was being stubborn, instructed these two policemen to take the plaintiff back, saying, "You know how to get the information we want." The defendants Moynahan and Brewer thereupon returned the plaintiff to the interrogation room where they continued their "sadistic and brutal" treatment of the plaintiff.
The complaint alleged that from the 18th to and including the 24th of August, 1948, the plaintiff was subjected to further intimidating, threatening and brutal periods of interrogation at the House of Correction Hospital and at the Cragin and Shakespeare Police Stations, all in the City of Chicago, Illinois, in further attempts to coerce him and to cause him to confess and incriminate himself as to the commission of alleged crimes; that during all of this period, up to the evening of August 24th, the plaintiff was not charged with any crime, was not "taken before * * * any judge, magistrate or justice of the peace," and was "denied the * * * right to contact any counsel, his relatives or friends until 10:30 the evening of the 24th of August, 1948, * * * 155 hours after said Harry Gordon Geach was illegally and unlawfully arrested and imprisoned," and that, as a result of all of the above mentioned actions by said Police Officers, the plaintiff was deprived of civil rights guaranteed to him by the Constitution of the United States. The complaint did allege that the mistreatment of the plaintiff by defendants Moynahan and Brewer had been "through misuse of state powers."
The defendants filed a motion to dismiss the complaint contending that the complaint shows on its face that the District Court was without jurisdiction, since no Federal question was involved and that, if plaintiff has any action, it is only a common law action for tort, subject only to the jurisdiction of the state courts.
A few days after this motion was filed it was withdrawn and the defendants were granted leave to answer or otherwise plead within thirty days. No other pleading or answer was filed by the defendants but, within the thirty day period, the court, on its own motion, dismissed the complaint for want of jurisdiction because the court was of the opinion that "the complaint does not state a claim under the Civil Rights Act and that Plaintiff has not met with the jurisdictional requirements to pursue any alleged common law remedy in the Federal Court."
From this order dismissing his complaint the plaintiff has prosecuted this appeal in forma pauperis. In his brief the plaintiff points out that he is not a lawyer and that he has never studied law and he asks that this court bear this fact in mind when considering his brief. In his brief the plaintiff insists that in his action against the defendants he asks judgment "squarely on the grounds of deprivation of his Federally guaranteed rights," and that, therefore, the District Court had jurisdiction of the action.
Title 8 U.S.C. § 43*fn1 provides:
"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."
Counsel for defendants, in attempting to sustain the judgment dismissing the complaint, depend entirely upon their contention that the complaint does not allege that the defendants, in their alleged wrongful search, seizure, arrest, detention and mistreatment of the plaintiff "acted under color of law." To support their contention the defendants cite Shemaitis v. Froemke, 7 Cir., 189 F.2d 963, where this court said that this Act does not give a right of action to a plaintiff for invasion of his rights by individual action, but only provides for an action against a defendant who had acted, or had claimed to act, under color of law.
While it is true that to give the plaintiff a cause of action under § 43, the alleged deprivation of rights must be under color of state law, custom or usage, the required factual situation may be described in a complaint ...